The Edward H. Blake

PARDEE, Circuit Judge (after stating the facts as above). This case being regularly called, the appellee submitted a motion to dismiss the appeal on the following grounds: “That a material part of the evidence adduced by the claimant in the district court was not reduced to writing; that none of the testimony of appel-.lee’s witnesses heard by the district judge was reduced to writing; that none of this testimony is included in the transcript of appeal herein; that no notes of the same were taken; that no stipulation was made by the respective proctors to omit or dispense with said testimony; that the issue involved in this cause is one of fact, which was determined in the district court solely upon this omitted oral testimony, and could not be determined by this court without the same; that there is no rule of the said district court making it indispensable to reduce such to writing; and that there is no issue of law raised herein which is independent of the facts established by said omitted testimony, and which could be passed upon by the court without first determining said facts.” The proctors for the appellants, not disputing the facts contained in the motion, contended it should not be granted, because the real facts.in the case, as shown by the testimony of the appellants’-wit [205] nesses, were embodied in the transcript. The proctors further contended that the questions they desired to have considered upon this appeal were wholly questions of law, not dependent in any respect upon the evidence adduced in the court below; and thereupon admitted and consented that, for the purposes of this appeal, the facts in the (-ase might be taken to be as set forth and declared in the libel, the amended libel, and the answer to the cross libel. A transcript of appeal in admiralty should contain all the evidence; adduct'd upon both sides. See Admiralty Rules Sup. Ct. No. 52; Rule 14 of this court (31 O. C. A. xci.). When such evidence is not reduced to writing in the lower court, and there is no rule of the lower court lequiring it to be reduced to writing, it would seem that an appeal can only be heard upon (he merits, where the evidence adduced appears by an agreed statement of facts, or where a statement is made by the court of the evidence adduced or of the facts proved. A similar question was passed upon in The Glide, 18 C. C. A. 504, 72 Fed. 200, decided in the Fourth circuit. The court said: “The next ground for the motion is that the record does not contain any of the evidence taken at the trial in the district court. This is siricily cor-red. The affidavits taken by the respondent, after the trial, of what the witnesses say they testified at (he trial, are hi no sense evidence taken at the trial. We fully concur with the district judge that there is no law or practice which would justify him in granting the certificate asked by proctors for the claimant. The rule 14 of this court [¡U (1. O. A. xc.i.J (clause 6) requires that the record in cases of admiralty and maritime jurisdiction shall he made up as provided in general admiralty rule No. 52 of the supreme court. This rule No. 52 requires that the record shall contain the testimony upon the pari; of the libelant and the testimony on the part of tlie defendant, unless the parties agree, by their proctors, by written stipulation, that it may be omitted. There is no such stipulation here. Clearly, the record is incomplete. This court cannot pass on the merits of the cast'. Nor, in the absence of a stipulation by counsel, is it possible to supply the omission. We must have (he evidence taken at Uie trial. It is impossible to obtain this. The judge who tried the case cannot recall it. The proctor for claimant is unable to furnish it in such shape as will meet the approval of the other side. Nor can it be imputed as a fault to any one that this evidence is not forthcoming. There is no rule or practice in this district court requiring the reduction to writing of evidence used at the trial. Yet, without such evidence, great, injustice may be done. If the appeal be dismissed on this ground, then the claimant will boar all the results of an omission for which he is not responsible. If we go on, and hear Hie appeal, the appellee will be put at a great, disadvantage, guiltless as he is .of any default. This is an anomalous condition of things. But in a court of justice there should be no default of justice if it can by any possibility bo prevented. It has been suggested that tile case should be tried here de novo. We concur with the court of appeals in the Second circuit in The Havilah, 1 C. C. A. 77, 48 Fed. 684, and 1 U. S. App. 17, and with the circuit court of appeals of the First circuit in The Philadelphian, 9 C. C. A. 54, 60 Fed. 424, that this court can, by the practice in admiralty, hear this case de novo. But this practice is one to bo used cautiously, and in case's of extreme necessity. Besides this, there is much force in the objection taken in The Philadelphian, supra: ‘In any case in which all the proofs are not reduced to writing in the district court, and no equivalent'is found in the record, we have no power except to decline to try the facts anew.’ ” The counsel for appellants contend that the real questions involved in this case are questions of law only, to wit, what is the construction of the clause of the charter party which provides, as a part of the cargo, for “a small quantity of oak ties”? and that the compromise [206] referred to in the lilbel as made between the captain of the Edward H. Blake and the Reliance Lumber Company to the effect that the term “small quantity of oak ties,” as used in the charter party, should mean 50,000 feet of oak ties, and that the libelant should be permitted to load on said vessel oak ties in excess of 50,000 feet by paying an additional freight of 50 cents per 1,000 feet, was absolutely null and void, because beyond the power of the. master. It may well be that the construction of the provision that part of the cargo may be “a small quantity of oak ties” is a legal question, which, under proper circumstances, should be decided by the court, in connection with Other provisions of the charter party; but if there was a valid compromise made in regard to the matter, by which the parties themselves construed the provision and determined its meaning, there would be no occasion for the court to pass upon the matter beyond the proof as to what was compromised. It may be conceded, as a general proposition, that the master of a vessel has no right to set aside, annul, or supersede the specific contracts made by the owner. At the same time it is clear that where, in the absence of the owners in the execution of a charter party, questions are raised between the ship and the charterers as to the proper construction of minor clauses in the charter party, the master, as agent of the owners, necessarily must deal with the same, and his construction and agreements in relation thereto must be binding upon the owner. And this seems to be the case presented here. In executing the charter party, the shippers and the captain were at loggerheads as to the exact quantity of oak ties the ship was to receive under the indefinite and ambiguous expression, “a small quantity of oak ties.” The loading of the ship was delayed; both parties had interests at risk; and we are clear it was in the power of the captain, acting in good faith, and without fraud, to settle and adjust the matter. On the facts of this case, taken to be as averred in the libel and amendment thereto, it is clear that the Reliance Lumber Company was without any fault which made it liable for demurrage, or for loss of freight. The case proceeded in the court below, and this appeal has been sued out, upon the theory that the appellants had instituted and prosecuted a cross libel. The rule is well settled that in admiralty the respondent may set up and prove and recoup for matters growing out of the same cause of action as is set up in the libel, and by averments in the answer may avail himself of all such matters to the extent of defeating the libelant’s demands; but it is also well settled that, if the respondent desires affirmative relief beyond defeating the libel, and a decree over against the libelant, he must, besides answering the case made by the libel, file a cross libel, by which we understand an independent proceeding with the formalities attendant upon an original libel. See authorities cited in 1 Enc. PI. & Prac. pp. 272, 273. We notice the matter here, not because it affects the decision of this appeal, but to avoid the citing of our decision as an admission that a prayer foi; decree at the end of an. answer to a libel can be considered under any circumstances as the bringing of a cross libel. From the record before us we are of opinion that the district court properly decided the issues presented, and the decree appealed from is affirmed.